I was pleased to join in the amicus brief supporting the Oracle position on functionality analysis for software copyrightability and fair use, concerning the copying by Google of Oracle’s Java APIs (https://www.supremecourt.gov/DocketPDF/18/18-956/133292/20200218154154863_18-956%20bsac%20Copyright%20Thought%20Leaders–PDFA.pdf), which is now being considered by the Supreme Court.

Kudos to Steven Tepp for the drafting and organization of the brief. In my view, there is no clear error on the part of the CAFC in its analysis of functionality and copyrightability (there are clearly several different methods among the Circuits for such analysis, but none seem inherently wrong), and even more fundamentally the fair use analysis by the CAFC is persuasive and comprehensive—there is no appearance here of “transformative” use. I’d posted similar comments in 2018 on the CAFC decision in this post (https://scipublaw.com/oracle-v-google/).


Download the Oracle v Google Brief